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2014 DIGILAW 753 (KER)

Poddar Plantations v. Lakshmikutty Amma

2014-09-25

P.BHAVADASAN

body2014
ORDER : 1. Yet again this Court is called upon to construe Section 125(3) of the Kerala Land Reforms Act though that has been done on earlier occasions. ` 2. The question that arises for consideration is whether the court below was justified in assuming jurisdiction and deciding that the matter need not be referred to Land Tribunal as the question of tenancy does not arise for consideration. The necessary facts are as follows: 3. O.S.No.320/1999 was filed by the members of the Mariveettil Tharavadu of Malabar for recovery of possession on the strength of title. It is not in dispute that as per Ext.A1, the karanavar of the tharavadu leased out about 500 acres of land to one Mr. Colin Aully Mechenzie, a planter of Meppady as per registered deed dated 11.07.1900 marked as Ext.A1. A sum of Rs.6,500/- was paid as royalty to the tharavadu and the lease period was for 99 years. It is also stipulated in the lease deed that if any blackwood trees were cut and removed, a sum of Rs.5/- per tree had to be given as seignorage. In partition of the tharavadu properties, the property fell to the share of the plaintiffs in the suit. They, therefore, instituted the suit for necessary reliefs. 4. The defendants are the successors in interest of Mr. Colin Aully Mechertzie which is a fact not in dispute. Among other contentions, they also raised a contention that they were entitled to fixity of tenure under the Land Reforms Act. In the light of the said contention, they also prayed that the matter may be referred to the Land Tribunal for taking a decision on that issue. 5. Initially, the trial court accepted the contention of the defendants and referred the matter to the Land Tribunal for taking decision on the question of tenancy. That was challenged in C.R.P. No. 1756/2003 before this Court. This Court, by order dated 15.06.2005, disposed of the C.R.P. In paragraph 3 of the said order, it was held as follows: “According to me, the court below has not properly considered this question. If the lease deed contains an indication that it is a lease of private, forest, then the matter need not be referred to the Land Tribunal”. 6. The matter thus went back to the trial court. If the lease deed contains an indication that it is a lease of private, forest, then the matter need not be referred to the Land Tribunal”. 6. The matter thus went back to the trial court. The trial court thereafter, on the materials before it especially construing the terms of Ext.A1, came to the conclusion that the question of tenancy does not arise for consideration and refused reference. It is the said order that is assailed in this revision. 7. Sri. P.B. -Krishnan, learned counsel appearing for the revision petitioner, contended that the act of the trial court amounts to usurpation of jurisdiction which it did not have and the court below was not justified in coming to the conclusion that the matter need not be referred to the Land Tribunal since the issue of tenancy did not arise for consideration. Of course, learned counsel did not dispute that if, prima facie, it is found that the claim is frivolous or lacks bonafides or when untenable contentions are raised regarding tenancy, the court may be justified in declining a reference. But, when an issue regarding tenancy is to be probed into on the basis of evidence to be adduced, the trial court has no jurisdiction to go into the question whether a reference is necessary. In such case reference under Section 125(3) of the Kerala Land Reforms Act is mandatory. 8. Learned counsel appearing for the revision petitioner accepted the proposition that the trial court is competent to decide as to whether the question of tenancy arises for consideration. But that is for a limited purpose and the materials available then namely, the pleadings of the parties and the documents should reflect that the claim is frivolous. If, on the other hand, it is a question that does arise and needs to be probed into, then the trial court is precluded from going into the issue of tenancy. 9. For the above proposition, learned counsel for the petitioner relied on the decisions in Mathevan Padmanabhan alias Ponnan (dead) through Lrs. v. Parmeshwaran Thampi and others (1995 Supp (1) SCC 479), Poovollaparambil Chathu and others v. V.P. Sudheer and others ( AIR 1999 SC 327 ), Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 (F.B)) etc. According to the learned counsel, if, on pleadings alone, issue could be determined, then the finding of the trial court may be proper. v. Parmeshwaran Thampi and others (1995 Supp (1) SCC 479), Poovollaparambil Chathu and others v. V.P. Sudheer and others ( AIR 1999 SC 327 ), Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 (F.B)) etc. According to the learned counsel, if, on pleadings alone, issue could be determined, then the finding of the trial court may be proper. According to the learned counsel, the scope of enquiry at that point of time is considerably limited and if it is found that the plea needs to be enquired into, then it has to be necessarily to be referred. Learned counsel went on to point out that the basis for the finding of the lower court is mainly on the terms of Ext.A1 and the Commissioner’s report. 10. Learned counsel for the petitioner drew attention of this Court to the fact that objections have been taken to the Commissioner’s report and that is yet to be considered. It is under such circumstances that the court below has gone on to enquire about the genuineness of the contention regarding tenancy. Learned counsel went on to point out that a stray word in Ext.A1 (xxxx) has been picked out of context and had been given undue importance. When Ext.A1 is read as a whole, it can be seen that the document would not indicate that the property that was leased out is a private forest. In support of his contention, learned counsel relied on the decisions in Delhi Development Authority v. Durga Chand Kaushish ( AIR 1973 SC 2609 ) and in Radha Sundar Dutta v. Mohd. Jahadur Rahim and others ( AIR 1959 SC 24 ). 11. Learned counsel for the petitioner then went on to point out that even assuming that it was a private forest at the time of lease, yet the defendant may be entitled to claim fixity of tenure if he is entitled to fixity of tenure under the Malabar Tenancy Act which is protected under the Kerala Land Reforms Act. That aspect of the case could not have been probed into by the trial court. The trial court simply assumed that since the property was leased out for the purpose of tea cultivation, it falls outside the protection under the Malabar Tenancy Act. That assumption has no basis. That aspect of the case could not have been probed into by the trial court. The trial court simply assumed that since the property was leased out for the purpose of tea cultivation, it falls outside the protection under the Malabar Tenancy Act. That assumption has no basis. At any rate, according to the learned counsel, it is a matter which could not be determined now on the basis of records and evidence had to be adduced with regard to the nature of the property at the time of lease and also with regard to the purpose for which it was leased out. Learned counsel also pointed out that the court below has placed considerable reliance on the fact that currently the property in question is surrounded by vested forest and therefore it is reasonable to presume that the property was a private forest at the time of lease. It is further pointed out that the boundaries of the property which was leased out as per Ext.A1 do not indicate that the property in question then was surrounded by private forest. According to the learned counsel, this is not a case where reference could have been declined merely on the basis of assumptions and presumptions and is a matter which needed to be probed into in detail and if that be so, clearly, the Civil Court has no jurisdiction going by Section 125(3) of the Kerala Land Reforms Act. 12. Sri. T. Sethumadhavan, learned Senior Counsel appearing for the contesting respondents contended that there are no grounds to interfere with the order of the court below. According to the learned counsel, jurisdiction that is to be exercised by the lower court was considerably limited by the remand order of this Court in C.R.P. No. 1756/2003. The lower court was directed to scrutinise the document and it was observed that if there is an element of private forest that was discernible from the document, then reference is not necessary. Learned counsel went on to point out that a reference to Land Tribunal is not something which is automatic. It is well settled by now that the issue should actually arise for consideration. That must be with reference to the pleadings available on record. Learned counsel conceded that at that point of time the merits and demerits of the claim cannot be probed into. It is well settled by now that the issue should actually arise for consideration. That must be with reference to the pleadings available on record. Learned counsel conceded that at that point of time the merits and demerits of the claim cannot be probed into. But, prima facie, it would be necessary to ascertain if the question arises for consideration. In the case on hand, the term (xxx) used in Ext.A1 and the fact that the property is surrounded by vested forest and that the property was leased out for tea plantation and also that seignorage was liable to be paid for cutting of black wood trees clearly show that it was a private forest and the defendant was not entitled to claim permanency of tenancy. It could not be said, according to the learned counsel, that these factors are totally irrelevant and ignoring these facts, a reference ought to have been made. 13. The question is whether the court below was justified in coming to the conclusion that a reference to Land Tribunal is not necessary. It may be useful to extract Section 125(3) of the Kerala Land Reforms Act which reads as follows: “125. Bar of jurisdiction of Civil Courts.- (1) xxxx (2) xxxx (3) If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only”. 14. The provision leaves one no doubt that if question of tenancy arises for adjudication, necessarily the matter has to be referred to Land Tribunal concerned for taking decision. It is true that a mere plea of tenancy as such may not be sufficient for a reference. But, at the same time, a probe into the question analysing the evidence available is also not warranted. The only question at that point of time is whether there is a bonafide claim for reference. It may be useful here to refer to the decisions cited by either side. 15. But, at the same time, a probe into the question analysing the evidence available is also not warranted. The only question at that point of time is whether there is a bonafide claim for reference. It may be useful here to refer to the decisions cited by either side. 15. In Lissy v. Kuttan ( 1976 KLT 571 (F.B)), it was held as follows: “......The only matter to be considered in the court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. This, the court will have to examine and for this purpose what will have to be examined are the pleadings, and we consider, nothing else. Whether the plea is frivolous or sustainable or prima facie true or not are all foreign to the scope of the enquiry before court. We are in complete agreement with the decision in Sankaran v. Rajammal ( 1974 KLT 488 ) where all the decisions on the subject on analogous provisions of previous enactments have been reviewed. The view has been taken in the decision that S.125(3) has barred any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established”. 16. In Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 (F.B)), it was held thus: “11. Counsel for the appellant contended, on the strength of the decisions in Noor Mohammad Khan v. Fakirappa ( AIR 1978 SC 1217 ) and Bhimjai v. Dundappa ( AIR 1966 SC 166 ) that the question of tenancy arises as soon as the plea was raised by the defendant that he was a tenant, and therefore the matter had to be referred to the Land Tribunal. We do not think this extreme position taken up by counsel for the appellant will be justified. A statement in such wide and comprehensive terms is to be found in the Full Bench decision in Lissy v. Kuttan ( 1976 KLT 571 ). The Full Bench observed: “......The only matter to be considered in the court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. The Full Bench observed: “......The only matter to be considered in the court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. This, the court will have to examine and for this purpose what will have to be examined are the pleadings, and we consider, nothing else. Whether the plea is frivolous or sustainable or prima facie true or not are all foreign to the scope of the enquiry before court. We are in complete agreement with the decision in Sankaran v. Rajammal ( 1974 KLT 488 ) where all the decisions on the subject on analogous provisions of previous enactments have been reviewed. The view has been taken in the decision that S.125(3) has barred any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established”. We consider that the principle has been very widely and broadly stated in the above passage. We cannot accept the statement of the law as correct. Unless the question actually “arises” for consideration, there is no obligation under S. 125(3) , to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S. 125(1), or the provisions of S. 125(3). It follows that the statement of the principle in Sankaran v. Rajammal ( 1974 KLT 488 ) which was approved by Full Bench in Lissy v. Kuttan ( 1976 KLT 571 ) must also be overruled. That decision stated that S.125(3) bars any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established. We consider this an overstatement of the principle. It is only if the question arises for consideration that the obligation to refer under S. 125(3) also arises. That decision stated that S.125(3) bars any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established. We consider this an overstatement of the principle. It is only if the question arises for consideration that the obligation to refer under S. 125(3) also arises. We do not think it can be the intention of the Legislature to make the reference to the Land Tribunal dependent upon a plea in the written statement which has got no relation to the claim made in the plaint and which would not, having regard to the frame of the plaint, or to other legal obstacles in raising the defence, call for any adjudication at all”. 17. In Poovollaparambil Chathu and others v. V.P. Sudheer and others (AIR 1999 Supreme Court 327), it was held as follows: “7. In our view, on these pleadings an issue would squarely arise whether the original lease D/-27th January, 1923 was ever acted upon or not and whether pursuant to the said lease the defendants are in possession and continued as such in possession as tenants. This question is squarely covered by Section 125 of the Kerala Land Reforms Act. We may mention that the Full Bench judgment of five learned Judges in the case of Kesava Bhat (AIR 1980 Kerala 40) (supra) was dealing with a case where the plaintiff had averred that the defendant is an agent and only the plaintiff’s possession was being tried to be disturbed by such an agent while the defendant’s plea was that he was a tenant. On the peculiar pleadings of that case it was found that an issue of tenancy did not arise”. 18. In Thomas Antony v. Varkey ( 2000 (1) KLT 12 (SC)), it was held thus: “3. The civil court can consider whether the plea raised by the party that he is a tenant or a Kudikidappukaran is a bona fide contention. If there is not even a remote possibility of the said plea being upheld by the Land Tribunal the civil court can conclude that the question does not reasonably arise in the case. Such an unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. Civil court cannot afford to aid such sinister tactics”. 19. If there is not even a remote possibility of the said plea being upheld by the Land Tribunal the civil court can conclude that the question does not reasonably arise in the case. Such an unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. Civil court cannot afford to aid such sinister tactics”. 19. In Sundaran v. Mohammed Koya ( 1995 (2) KLT 115 ), it was held as follows: “4. But merely because a person raised a claim without any bona fides, can it be said that the said question would arise in the case. If the motive of the party who raised the plea is only to procrastinate the proceedings it is the duty of the civil court to decide first whether the question genuinely arises in the case. The amplitude of the expression “arises” must be constricted to what genuinely arises in a case in view of the very unsatisfactory function of the present Land Tribunal system in Kerala. A study of the statistics (concerning references made to Land Tribunals in Kerala) etches lamentable picture of the fate of large number of such references. Mention of a few instances is sufficient to highlight the dimension of the malfunctioning of Land Tribunal system in Kerala, eg:- Principal Munsiffs Court, Palakkad made a reference to the Land Tribunal, Palakkad on 7-9-1974; Principal Munsiff, Kollam had referred a case to the Land Tribunal on 1-2-1977; Principal Munsiff, Alappuzha has referred a question to the Land Tribunal on 19-11-74 and the Munsiff of Mavelikkara referred a similar question on 21-3-1975. From the High Court Registry we learnt that those references still remain unanswered by the Land Tribunals concerned. Those are the extreme cases and the less serious instances are far too many. Adding fuel to fire, missing of vital records despatched along with references made to the Land Tribunals is a frequent occurrence in Land Tribunals. When the subordinate courts bring such instances to the notice of the High Court no improvement could be achieved in the system due to the dormancy of the Land Tribunal system here”. 20. In Abubaker v. Kadija Ummal ( 2007 (2) KLT 807 ), it was held thus: “19. When the subordinate courts bring such instances to the notice of the High Court no improvement could be achieved in the system due to the dormancy of the Land Tribunal system here”. 20. In Abubaker v. Kadija Ummal ( 2007 (2) KLT 807 ), it was held thus: “19. This aspect is to be considered, to decide the question whether the claim for tenancy raised by respondent is to be referred to the Land Tribunal under S. 125(3) of Kerala Land Reforms Act. As held by the Full Bench in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) when a question of tenancy arises for consideration, civil court can decide that question only after a reference as provided under S. 125(3) of Kerala Land Reforms Act. But all questions raised, will not arise for consideration. Even when a claim for tenancy is raised, if on the undisputed facts the question will not arise for consideration for the reason that the claim will not lie or that the claim is prima facie not sustainable, the question of tenancy raised need not be referred to the Land Tribunal and civil court of its own can decide that question”. 21. Reading of the above decisions clearly show that there is no straight jacket formula to decide whether a reference is necessary in the matter. Each case depends upon its own facts. But one aspect is very clear that if the civil court is satisfied that such question does arise for consideration, reference is statutory obligation. But merely because a plea is raised which cannot have the support of law does not mean that there should be a reference. 22. In the case on hand, on an earlier occasion, the civil court did refer the matter to the Tribunal for taking a decision. Ext.A1 contains terms and conditions in both English and vernacular language. That order of reference was challenged in the CRP already made mention of. The main criteria which the lower court adopted to come to the conclusion that reference need not be made was the word (xxxx) made mention of in Ext.A1. It is interesting to note that there is no corresponding word in the English version of the document. That order of reference was challenged in the CRP already made mention of. The main criteria which the lower court adopted to come to the conclusion that reference need not be made was the word (xxxx) made mention of in Ext.A1. It is interesting to note that there is no corresponding word in the English version of the document. On a reading of the lease deed as a whole, it only shows that 500 Acres of land was leased out for cultivation on the terms already made mention of. The lower court seems to have been considerably impressed by the fact that there must have been trees in the property at that point of time and going by the Commissioner’s report now available as the property is surrounded by vested forest and also the fact that the property is cultivated with tea plantations must lead to the irresistible conclusion that it was a private forest that was leased out for tea cultivation. 23. One must remember that at this point of time all that the court had before it was the plaint, written statement and Ext.A1 and Commissioner’s report. One cannot omit to note that the defendant had filed their objections to the Commissioner’s report and taken objection to its acceptability. In the plaint, it was averred that the property in question was private forest at the relevant time which is specifically denied in the written statement so that the issue as to nature of property at the time of lease did arise for consideration. Merely because seigniorage is levied as per Ext.A1, it cannot lead to the conclusion that the property was a private forest initially. There can be no doubt in the light of the decisions of this Court in Gopalan Nair v. State of Kerala (1988 (1) KLT SN 3 (C.No.6)) and in Ipe v. Pramathan Namboodiripad ( 1988 (2) KLT 277 ) that the nature of the land as on the date of lease is what is to be looked into for the purpose of determining the issue with regard to tenancy. 24. As regards the purpose of lease, Ext.A1 only says that lease was for cultivation. It does not specify the nature of the cultivation that is to be carried out in the property. The lower court again was impressed by the fact that going by the Commissioner’s report, property is surrounded by vested forest. 24. As regards the purpose of lease, Ext.A1 only says that lease was for cultivation. It does not specify the nature of the cultivation that is to be carried out in the property. The lower court again was impressed by the fact that going by the Commissioner’s report, property is surrounded by vested forest. But, as already stated, apart from the fact that objections have been filed to the Commissioner’s report, the state of affairs noted by the lower court is as on the date of Commissioner’s report. Here, one cannot omit to note the boundaries shown in Ext.A1 lease deed and also in the plaint. The boundaries shown in Ext.A1 read as follows:” XXXX 25. The boundaries shown in the plaint read as follows: XXXX 26. It will be imprudent on the part of the court to ascertain, based on the present nature of the property, that it must have been the same at the time of execution of Ext.A1 also. That the trial court did not and could not arrive at a conclusion merely on the basis of Ext.A1 document itself shows that an enquiry was necessary. Once it is accepted that a proper enquiry was necessary to ascertain the nature of the land at the time of lease, then necessarily the hands of the civil court are tied. It is not supposed to make an enquiry thereafter for the simple reason that it cannot probe into the merits and demerits of the contentions raised by the defendant. The decisions already made mention of support the theory that a reference is unnecessary only when there is not even a remote possibility of the contention of tenancy raised by the defendant being accepted. If, as a matter of fact, it is probable and possible and the issue regarding tenancy raised by the defendant warrants an enquiry and is to be probed into, necessarily it follows that going by Section 125(3) of the Kerala Land Reforms Act, the jurisdiction of the civil court is barred. 27. In the case on hand, even assuming that the land in question falls within the category of private forest, the matter does not end. 27. In the case on hand, even assuming that the land in question falls within the category of private forest, the matter does not end. The relevant provision herein is Section 3(viii) of the Kerala Land Reforms Act which reads as follows: “3(vii) leases of private forests: Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons; or” 28. It is significant to notice that there is a definite contention taken in the written statement that even assuming that the land falls within the ambit of private forest as mentioned in Section 3(vii) of the Kerala Land Reforms Act, still going by the proviso the defendant had already acquired fixity of tenure under Malabar Tenancy Act and that right of his is protected by Kerala Land Reforms Act. 29. It is here that the defendant projects that he had already acquired fixity of tenure under the Malabar Tenancy Act. It therefore follows that even assuming that the finding of the lower court that the property in question was private forest, the issue is not concluded. 30. It may be useful here to refer to the relevant provisions of Malabar Tenancy Act, 1929. Section 2 of the Malabar Tenancy Act reads as follows: “2. Nothing in this Act shall apply to - (1) lands transferred by a landlord for felling timber or for planting tea, coffee, rubber, cinchona or any other special crop prescribed by a rule mode by the State Government or the erection of any building for the purpose of, or ancillary to, the cultivation of such crop, or the preparation of the same for the market or subject to section 55, land let only for fugitive cultivation: Provided that no rule under this clause shall affect any land in respect of which any tenant has a right of fixity of tenure under this Act, so long as such right subsists, or (2) any transaction relating only to the usufruct of trees, or (3) any building owned by a landlord including a house, shop or warehouse, and the site thereof, together with the garden or land appurtenant thereto but not including a hut belonging to a landlord, in any ulkudi or kudikidappu”. 31. 31. Section 21 of the Malabar Tenancy Act which is similar to Section 13 Of the Kerala Land Reforms Act confers fixity of tenure which is protected by Kerala Land Reforms Act. Therefore, if the defendant is able to show that by virtue of provision of Malabar Tenancy Act, he has acquired permanency of tenancy, then, of course, the accrued statutory right of the defendant continues even after the Kerala Land Reforms Act came into force and it is protected under the proviso to Section 3 (vii) of the Land Reforms Act. 32. In order to defeat the claim of permanency of tenancy under the Malabar Tenancy Act, even assuming it is a private forest it has to show that lease is for one of the purposes made mention of in Section 2(1) of the Malabar Tenancy Act if not, the person concerned will be entitled to claim fixity of tenure. 33. As already noticed, there is no mention in Ext.A1 as to the purpose for which the land was given. The purpose of lease and nature of land leased out has to be gathered by reading the document as a whole. One may notice the decisions cited by the petitioner in this regard. In the decision in Delhi Development Authority v. Durga Chand Kaushish ( AIR 1973 SC 2609 ), it was held as follows: : “19. Both sides have relied upon certain passages in Odgers’. “Construction of Deeds and Statutes” (5th ed. 1967). There (at pages 28-29), the First General Rule of Interpretation formulated is: “The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.” That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, “the document” means “the document” read as a whole and not piecemeal. 20. The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results, must be resorted to first. Of course, “the document” means “the document” read as a whole and not piecemeal. 20. The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results, must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above: Lord Wensleydale, in Monypenny v. Monypenny (1861) 9 HLC 114 at p. 146 said: “The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.” Brett, U in Re Meredith, ex. P. Chick (1879) 11 Ch. D. 731 at p. 739 observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke....They said that in construing instruments you must have regard, not to the presumed intention of the parties’ but to the meaning of the words which they have used.” 21. Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim. AIR 1959 SC 24 at p. 29. “Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory’ it is the former that should be adopted on the principle expressed in the maxim “ut rrs magis valeal quam pereat.” 22. Assuming, however, that there is some conflict between an earlier part of the deed containing a demise of land clearly for a period of 90 years on an annual rent of Rs.365/-, and the proviso of covenant No. 9 annexed to the demise, in a later part of the deed, which cannot be resolved without discarding or disregarding some word or words, the respondent’s counsel contended that the earlier words of demise, consistently supported by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on: Sahebzada Mohd. He relied for this proposition on: Sahebzada Mohd. Kamgarh Shah v. Jagdish Chandra Rao Dhabal Deb. ( (1960) 3 SCR 604 at p. 611 = AIR 1960 SC 953 ); Ramkishore Lai v. Kamal Narain, ((1963) Supp 2 SCR 417 at p. 425 = AIR 1963 SC 890 ); Forbes v. Git (1922) 1 AC 256 at p. 259. 34. In the decision in Radha Sundar Dutta v. Mohd Jahadmr Rahim and others ( AIR 1959 SC 24 ), it was held as follows: “11. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein white the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim “ut res magis vateat qwam pereatâ€�. What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate ‘Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, that no doubt posits the continuance in those persons of the title under the original ‘Patni’. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees under the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new ‘Patni’ in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other ‘Patnidars’ of lot Abiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni. 13. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni. 13. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi v. Umesh Chandra, AIR 1925 Cal 807 (1), the facts were that the Maharaja of Burdwan had created a ‘Patni’ of lot Kooly in 1820. The ‘Choukidari Chakran’ lands situated within that village were resumed under the Act and transferred to the ‘Zamindar’ who granted them in 1899 to one Syamlal Chatterjee in ‘Patni’ on terms similar to those in Exhibit B in 1914 the ‘Patni lot Kooly was sold under the Regulation, and purchased by Smt. Kanchan Barani Debi. She then sued as such purchaser to recover possession of the ‘Choukidari Chakran’ lands. The defendants who represented the grantees under the ‘Patni’ settlement of 1899 resisted the suit on the ground that the sale of ‘Patni’ Kooly did not operate to vest in the purchaser the title in the ‘Choukidari Chakran’ lands, as they formed a distinct ‘Patni’. Dealing with this, contention, B. B. Ghose J., who delivered the judgment of the Court, observed: “It is certainly open to the only two parties concerned alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Choukidari Chakran lands were granted to Syamlal Chatterjee.” The learned Judge then refers to the two clauses corresponding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to restore the position as it was when the original ‘Patni’ was created, and that, in consequence, the purchaser was entitled to the ‘Patni’ as it was created in 1820, and that the plaintiff was entitled to the possession of the ‘Choukidari Chakran’ lands as being part of the ‘Patni’. Now, it is to be observed that in deciding that the ‘Choukidari Chakran’ lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of rent payable thereon under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct ‘Patni’. Nor do we agree with them that the earlier clause providing for the sale of the ‘Chaukidari Chakran’ lands in default of the payment of jama’, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well-established that it is the earlier clause that must override the later clauses and not ‘vice versa’. In Forbes v. ‘Git, (1922) 1 AC 256 at p. 259: ( AIR 1921 PC 209 at p. 211) (J). Lord Wrenbury stated the rule in the following terms: “If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot he reconciled and the earlier provision in the deed prevails over the later.” We accordingly hold that Exhibit B created a new ‘Patni’ and that the sale of the lands comprised therein is not bad as of a portion of a Patni”. 35. When Ext.A1 read as a whole, it only shows that land covered by Ext.A1 was leased out for cultivation. (Corresponding words of (xxxx) is absent in English version of the deed). True it imposes seigniorage for cutting black wood trees. Neither the nature of the land nor the type of cultivation to be carried on is mentioned in Ext.A1. 35. When Ext.A1 read as a whole, it only shows that land covered by Ext.A1 was leased out for cultivation. (Corresponding words of (xxxx) is absent in English version of the deed). True it imposes seigniorage for cutting black wood trees. Neither the nature of the land nor the type of cultivation to be carried on is mentioned in Ext.A1. The lower court assumed that since there is tea plantation now, in 1900 when Ext.A1 deed was executed the lease must have been given for tea plantation. It also assumed that since the lessee was described as a planter, in all probability the lease must have been for tea cultivation more so since it is tea plantation now. 36. One fact cannot be omitted to be noticed here. That in the written statement filed by the contesting defendant, there was a specific plea of benefit under the Malabar Tenancy Act. There was no replication on the side of the plaintiffs pointing out that the said contention is without any basis and the lease evidenced by Ext.A1 was for one of the purposes made mention of in Section 2(1) of the Malabar Tenancy Act. 37. When Section 3 of the Kerala Land Reforms Act and Section 2 of the Malabar Tenancy Act are read together, it necessarily follows that evidence is necessary to come to the conclusion as to what was the nature of the property and what was the purpose for which lease was made in 1900 when Ext.A1 lease deed was executed. One cannot jump to the conclusion that original lease must have been for planting tea merely because the person to whom lease was made was a planter and at present the property is used for tea plantation. One must’ notice here that the Commissioner’s report also mentions other plantations in the property. 38. The contention that in the light of the remand order, once it is found that the property is private forest, nothing more remains to be considered cannot be accepted. Even assuming that that would be sufficient to take it out of the ambit of claim of permanency of tenancy under the Kerala Land Reforms Act, still the question remains whether the defendant had acquired permanency of tenancy under the Malabar Tenancy Act which is protected under the Kerala Land Reforms Act. Even assuming that that would be sufficient to take it out of the ambit of claim of permanency of tenancy under the Kerala Land Reforms Act, still the question remains whether the defendant had acquired permanency of tenancy under the Malabar Tenancy Act which is protected under the Kerala Land Reforms Act. That aspect of the case cannot be treated to have been shut out by the remand Oder. 39. It is not a case where one could, on the face of it, say that a reference is unnecessary. The only indication in Ext.A1 in the Malayalam version is the term (xxxx) which, as already noted, is conspicuously absent in the English version of the document. The other matters which impressed the court below have also been made mention of. 40. For the above reasons, this Court is unable to accept the finding of the lower court that a reference is unnecessary. At any rate, a probe into the matter is felt absolutely necessary before a final conclusion can be drawn regarding the claim of tenancy made by the defendant. If that be so, Section 125(3) of the Kerala Land Reforms Act is a clear bar. 41. It is pointed out by Adv. Sri .T. Sethumadhavan, learned Senior Counsel appearing for the respondents that in the nature of the order passed by the court below, a revision may not be maintainable. 42. Learned counsel appearing for the revision petitioner then pointed out that this Court is not precluded from treating the petition one under Article 227 of the Constitution of India. A reference was made to the decision in Col Anil Kak (Retd) v. Municipal Corporation, Indore & Ors. ( AIR 2007 SC 1130 ) wherein it is held as follows: “2. All that the High Court has done is to treat the petition filed before it under Section 115 of the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an order in an appeal arising from a proceeding under Order 39, Rules 1 and 2 of the Code, could not be challenged under Section 115 of the Code since the order was in the nature of an interlocutory order. In such a situation, in our view, the High Court rightly decided to permit the revision petitioners before it, to convert the same as a proceeding under Article 227 of the Constitution of India. After all, the court could have done it on its own, even without a motion in that behalf by the petitioner. We see absolutely no ground to interfere with the said order on the grounds raised in this special leave petition. Hence, this special leave petition is dismissed. SLP(C) No.11940 of 2003 Leave granted”. 43. In the light of the above decision, this Court will be perfectly justified in treating the petition one under Article 227 of the Constitution of India and exercising the jurisdiction thereunder. Apart from the fact that High Court can interfere when jurisdictional error is pointed out, no prejudice is also caused to the respondents by treating the petition as one under Article 227 of the Constitution of India. For the above reasons, this revision petition is allowed. The impugned order is set aside and the trial court is directed to refer the matter to the Land Tribunal concerned under Section 125(3) of the Kerala Land Reforms Act for taking a decision on the question of tenancy. The Land Tribunal concerned may decide the question of tenancy untrammelled by the observations of this Court while disposing of this C.R.P and earlier matters. On reference being received by the Land Tribunal concerned, the Tribunal shall make every endeavour to dispose of the same as expeditiously as possible, at any rate, within a period of six months from the date of receipt of reference order from the Munsiff Court concerned.